Meikle v. Northwestern National Insurance

Citations

• 243 Pa. 557
• 90 A. 354
• 1914 Pa. LEXIS 663

Syllabus

<p>Pleading and practice — Premature action — Plea in abatement— Affidavit of defense — Suit on insurance policy.</p> <p>1. The allegation that an action is premature is not a defense to the action but to the writ, and judgment upon it, if found true, is not that the plaintiff take nothing by his writ but that the writ be quashed. Such a defense should be set up by plea in abatement or demurrer or affidavit of defense before answering to the merits.</p> <p>2. In an action upon a policy of fire insurance, the defendant filed an affidavit of defense on the merits without raising any question as to whether the action was prematurely brought, and the case went to trial. After a verdict had been recovered for plaintiff, defendant made a motion for judgment n. o. v. on the ground that the action had been brought within sixty days after satisfactory proof of loss.had been furnished the company, although the policy provided that no suit should be brought until more than sixty days thereafter. The lower court discharged the rule and entered judgment on the verdict. Held, no error.</p>